In a Texas divorce trial, the court has the responsibility of dividing the community property of the parties. Community property is any property acquired during marriage by either spouse that is not separate property. Separate property is: 1) any property owned or claimed before marriage, 2) property inherited during marriage, 3) property received as a gift during marriage, and 4) recovery for personal injuries sustained during marriage, excluding loss of earning capacity. While a spouse's separate property belongs to that spouse and can't be divided during divorce, community property belongs to the marriage and must be divided during divorce.
Fault in the Breakup of the Marriage
Courts can consider whose fault it was the marriage ended when dividing the community estate.
Benefits to the Innocent Spouse
Courts can consider the benefits the spouse not at fault for the end of the marriage would have had if the marriage continued.
Disparity in Earning Power and Ability to Support Themselves
Courts can consider the disparity between spouse's earnings abilities, their business opportunities and abilities when dividing the community estate. This goes hand in hand with courts also considering the ability of each spouse to support themselves going forward. For example, if you have one spouse with multiple post-graduate degrees who earns a six figure income and the other spouse has a high school education and limited work experience, all other things being equal, the gap between the two spouses' earning abilities and opportunities may result in the less educated spouse receiving more of the community estate. The importance of these factors can be diminished if the community estate is so large, that even 50% will keep the lower earning spouse in financial comfort.
Health of the Spouses
Courts can consider the physical condition of each spouse when dividing the community estate. This factor especially comes into play if one spouse's poor physical condition was caused by the other spouse's abuse.
Children of the Marriage
Courts can consider the burden of the care and maintenance of a child when dividing the community estate. Courts do not want to leave a parent without enough liquid assets to provide for their children's minimum needs. This factor becomes very important when a child of the marriage, whether the child is a minor or adult, is disabled and requires significant care by a parent. In such a difficult situation, a court may provide more of the community estate to the care-giving spouse to offset the future costs of care for the disabled child of the marriage.
Size of a Spouse's Separate Estate
Courts can consider the size of each spouse's separate estate when dividing the community estate. If one spouse comes into the marriage with significantly more assets than the other spouse, the divorce court can't award those pre-marital assets to the other spouse. However, the divorce Court may award more of the community estate to the spouse who came into the marriage with less.
Age of the Spouses
Courts can consider the age of each spouse when dividing the community estate of the parties.
Tax Consequences of Division of Property
Courts can consider whether a specific asset will be subject to taxation and when the tax will need to be paid in dividing the community estate of the parties.
These factors are rarely considered independently of each other in a typical case. These and other factors not discussed in this article often overlap and weigh for and against each other when courts are deciding whether to award one spouse more of the community estate.